A Montana judge granted Michelle Kulstad parental rights to the children her former partner, Barbara Maniaci, had adopted. Kulstad never officially adopted the children, now five and eight, but Judge Ed McLean ruled that Kulstad was a legal parent, as she had participated in raising the children. The judge argued that to deny Kulstad joint custody would be an act of discrimination equivalent to a bias based on race.

Maniaci and Kulstad were a couple for 10 years; Maniaci has married a man, and expressed that Kulstad’s involvement would be disruptive to her efforts to raise the children with her husband.

However, the judge ruled that raising the children without Kulstad’s input “would be not only contrary to their best interests, but severely detrimental to their well-being.” Betsy Griffing, legal director for the American Civil Liberties Union explains, “The point of this is that children of every parent have the right to a parental bond.”

Professor Arthur Leonard of New York Law School breaks down some of the elements of the case on his blog, Leonard Link. He notes that Kulstad and Maniaci had been together since 1996 and wore rings symbolizing their relationship. The couple had agreed that Kulstad would serve as a parent to children when Maniaci adopted them. Post-break up, Maniaci tried to convince the children that Kulstad was not their mother, even resorting to playing tapes saying as much.

But McLean decided the evidence supported the claim that Kulstad was a parent, and Montana law states that “persons who have previously established a parent-child relationship that is in the best interests of the child to continue” can file to secure their parental rights. Montana courts have also previously upheld the common-law notion of a de facto parent.

A Virginia judge made a similar ruling in June 2008, even though Virginia law explicitly bans same-sex marriages. Lisa Miller and Janet Jenkins had entered into a civil union in Vermont, where they are legal. The union was then legally dissolved in Vermont and Miller, the child’s biological mother, took the child back to Virginia. A Vermont court had granted Jenkins visitation rights, but a lower Virginia court revoked them.

The Virginia Supreme Court reversed that decision, ruling that while the union was not actually recognized in Virginia, the Vermont law applied there. According to the legal director of the American Civil Liberties Union of Virginia, “The Virginia courts are simply following the accepted law and recognizing the custody and visitation decisions of another state, as it would expect other states to recognize its decisions.”

As early as 2004, the California Supreme Court began reviewing parental-rights cases in the wake of same-sex couple breakups. Law.com reported that it marked a triumphant moment for gay rights activists. “What it means to me is that they are taking very seriously the need to define the law in order to protect the rights of children of same-sex couples and the rights of same-sex parents,” said Jill Hersh, a lawyer for one of the plaintiffs.